Supreme Court - Daily Orders
Umakanth Agarwal vs Syed Shakeel on 22 October, 2019
Bench: Uday Umesh Lalit, R. Subhash Reddy
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.8193-8194/2019
(Arising out of SLP (Civil) Nos.5577-5578 of 2019)
UMAKANTH AGARWAL & ORS. Appellants
VERSUS
SYED SHAKEEL & ORS. Respondents
O R D E R
Leave granted.
These appeals question the judgment and final order dated 04.10.2018 in I.A. Nos.3 and 4 of 2018 in C.C.C.A. No.214 of 2018 passed by the High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh. Original Suit No.171/2015 was filed by respondent nos.1 and 2 herein in the Court of Chief Judge, City Civil Court, Hyderabad with the following prayers:
“(a) To grant permanent injunction restraining the defendants, their agents, servants and all persons claiming through them from interfering with peaceful possession and enjoyment of the plaintiffs in respect of the suit schedule property.
(b) Award costs of the suit.”
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It was alleged in the suit that in pursuance of a
Development Agreement-cum-General Power of Attorney dated
22.11.2006 executed between the said respondent nos.1 and 2 and the defendants in the Suit, the plaint schedule property was entrusted to respondents nos.1 and 2 for development as per terms entered into between the parties. It was stated that as agreed by the parties, said respondent nos.1 and 2 were to cause construction on the plaint schedule property whereafter the constructed area was to be shared between the parties.
It is a matter of record that though the agreement was entered into in the year 2006, not even a sanctioned plan for the proposed construction was obtained and no construction was erected in pursuance of the aforesaid agreement. The suit also came to be filed only in the year 2015 with the prayers as stated above.
The Trial Court framed following issues:
“1. Whether the plaintiffs are entitled for permanent injunction as prayed for?
2. Whether there is cause of action to file the suit?
3. Whether the suit is barred by limitation?
4. Whether the suit is properly valued?
5. To what relief?3
In para 17 of its judgment and order dated 11.09.2017, the Trial Court observed as under:
“It is already held that the plaintiffs can only be considered to be in possession of the property only after constructing the flats. Therefore, without making any construction the plaintiffs does not acquire any title over the suit schedule property and also possession. Mere symbolic possession for obtaining licences does not mean that the possession was delivered. The real owners gave a GPA to the Developer for obtaining permission. The plaintiffs have not even obtained any permission except from the Airport Authority of India. Therefore, the plaintiffs miserably failed to prove that they acquire title over the suit schedule property and also they are in possession of the suit schedule property and if the injunction is not granted, they will suffer irreparable loss.” Thus, finding that no case was made out by the plaintiffs, the Suit was dismissed by the Trial Court. Being aggrieved, respondents nos.1 and 2 preferred C.C.C.A. No.214 of 2018 in the High Court. During the pendency of the appeal, the High Court was pleased to grant interim relief while considering I.A. Nos.3 and 4 of 2018 as under:
“After hearing both the learned counsels, this Court notices that the evidence of PW1 on oath in the Court below has not been challenged by way of cross-examination. The development agreement has not been cancelled and a further supplemental agreement was also entered into. These facts are visible from the record. In addition, whether the bare suit is maintainable is a matter to be decided during the course of hearing of the appeal. Whether the conduct of the plaintiff disentitles him to the final relief is also a matter to be decided in the hearing of the main appeal. At this stage, only a prima facie view is being taken.
Plaintiff/appellant has made out a prima facie case in their favour. The agreements have not been cancelled. The evidence of PW1 has not been challenged. The balance of convenience is also in favour of the 4 plaintiff/appellant. Greater harm is caused to the plaintiff/appellant if their possession is interfered now or alienations are made. Creation of third party interest would lead to multifarious proceedings also. Damages are also irreparable. Hence, this Court is of the opinion that the plaintiff/appellant has made out a case for grant of a temporary injunction restraining the respondents from alienating the property to third parties from creating any third party rights and interest in the same. Accordingly, this Court comes to a conclusion that there should be an interim injunction restraining the respondents from creating any third party interest in the suit schedule property.” Mr. B.H. Marlapalle, learned Senior Advocate appearing for the appellants submitted inter alia that the suit itself was filed for injunction simplicitor, it was filed nine years after the agreement and during the pendency of the suit, no order of injunction was passed by the Trial Court. In his submission, the scope of the interim relief as granted by the High Court went far beyond the frame of the suit and the relief prayed therein.
Mr. P.S. Narasimha, learned Senior Advocate appearing for respondent nos.1 and 2 on the other hand submitted that the possession of respondent nos.1 and 2 was in terms of the agreement and since the agreement itself was never repudiated or terminated, the occasion for respondents no.1 and 2 to file a suit seeking specific performance had never arisen and they were justified in filing the suit for injunction simplicitor. 5 Without going into the merits and demerits of the rival contentions, in our view, the scope and width of the interim directions passed by the High Court go far beyond the scope of the suit. The suit itself was filed on the premise that respondents no.1 and 2 were in possession of the property and their possession needed to be protected. The Trial Court having negated the issue, normally the appropriate course for the High Court would be to take up the appeal for hearing at an expedited date. The High Court ought not to have passed interim directions injuncting the present appellants from alienating the property.
We, therefore, set-aside the judgment and order passed by the High Court and request the High Court to take up the appeal itself for hearing at an expedited date and dispose of the same as early as possible and preferably within six months from today.
Needless to say that the parties shall be bound by the principle of lis pendens and such other orders as the High Court may deem appropriate to pass consistent with the nature of the matter. We make it clear that we have not and shall not be taken to have expressed any opinion on the merits of the matter.6
The appeals stand allowed in the aforesaid terms. No costs.
.................................J. [UDAY UMESH LALIT] .................................J. [R. SUBHASH REDDY] NEW DELHI;
OCTOBER 22, 2019
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ITEM NO.8 COURT NO.7 SECTION XII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
SLP (Civil) Nos.5577-5578 of 2019
UMAKANTH AGARWAL & ORS. Appellant(s)
VERSUS
SYED SHAKEEL & ORS. Respondent(s)
Date : 22-10-2019 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE R. SUBHASH REDDY For Appellant(s) Mr. B.H. Marlapalle, Sr. Adv.
Mr. Umang Tripathi, Adv.
Mr. Ajit Wagh, Adv.
Mr. Anil Kumar, Adv.
Mr. Apoorv Shukla, Adv.
Mr. Kamal Mohan Gupta, AOR For Respondent(s) Mr. P.S. Narasimha, Sr. Adv.
Mr. M. Srinivas R. Rao, Adv.
Mr. Abid Ali Beeran P, AOR Mr. Sarath S. Janardanan, Adv.
Ms. Sindoora VNL, Adv.
Mohd. Zahid Hussain, Adv.
Mr. Aftab Ali Khan, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeals are allowed, in terms of the signed order. Pending application(s), if any, shall stand disposed of.
(MUKESH NASA) (SUMAN JAIN)
COURT MASTER BRANCH OFFICER
(Signed Order is placed on the File)